Demystifying Sacrilege: The Mumtaz Qadri Case

Mumtaz Qadri v The State
PLD 2016 SC 17

Mustafa Khan *

Introduction

In a country where religious bigotry and extreme values find easy public expression without reproach, one can only imagine the precariousness of the position of the Supreme Court while hearing Mumtaz Qadri’s case. He was a confessed murderer, laying proud claim to shooting Governor Salman Taseer down in broad daylight, and yet there was significant risk in finding him guilty and sentencing him appropriately. Swarms of people had come out in support of Qadri, lauding him as a Ghazi, a champion of Islam, and valorizing him for his bravery and conviction.^[1] Even after his execution, devotees continue to make pilgrimages to his grave, and there have been efforts to convert it into a shrine in order to immortalize Qadri as a Shaheed. In this case note, I analyze the contents of the judgment in Mumtaz Qadri v the State,^[3] and show that how the Supreme Court maneuvered the treacherous waters of the blasphemy law and the jurisprudence that surrounds it to deliver a skillfully crafted guilty verdict that left little question as to Qadri’s defense of grave and sudden provocation, and also undermined his claim to religious righteousness.

The structure of this note is as follows: first I lay out the procedural history, facts of the case and the ruling of the Supreme Court, followed by a discussion of relevant prior case law. I then critically engage with the judgment of the Supreme Court, making comments on the arguments employed by the court. I conclude by reflecting on the impact this judgment may have on the trajectory of discourse on blasphemy in Pakistan.

Facts and Holding

On the 4th of January 2011, the Governor of Punjab, Salman Taseer was shot by his official guard, Malik Mumtaz Qadri, in Islamabad. The attack left Mr. Taseer gravely injured, and he died soon afterwards. Immediately after firing upon the Governor, Mr. Qadri laid down his weapon and surrendered himself to the other guards deputed to Mr. Taseer’s security. Upon the completion of the investigation against Mumtaz Qadri, a challan was submitted before the Anti Terrorism Court II, Rawalpindi Division, which framed charges against the accused under Section 7 (a) of the Anti Terrorism Act (‘ATA’) 1997,^[4] read with section 302^[5] and 109 ^[6] of the Pakistan Penal Code (‘PPC’) 1860. ^[7]

In the trial court, Mumtaz Qadri did not deny that he had fired the shots that killed Salman Taseer. However, he stated that he was not guilty because he had committed the murder of an apostate. ^[8] Qadri argued that the victim had exposed himself as a sympathizer of a condemned prisoner, Aasia Bibi, a woman who had been charged and convicted of blasphemy. ^[9] Furthermore, he presented news clippings and interviews of the deceased Taseer in which he had criticized the current blasphemy law; actions that Qadri alleged were a violation of Section 295-C of the PPC, itself a capital offense. ^[10] Thus, Qadri argued that his actions were justified in light of these circumstances.

In its judgment dated 1 October 2011, the Anti Terrorism Court found Qadri guilty of an offense under section 302 (b) of the PPC and sentenced him to death and to pay a sum of Rs. 1,00,000 to the heirs of the deceased as compensation. Through the same judgment, the trial court also convicted the accused of an offence under section 7(a) of the Anti-Terrorism Act, 1997 and sentenced him to death and to pay a fine of Rs. 1,00,000.

Qadri challenged his convictions and sentences before the Islamabad High Court. The court dismissed the appeal to the extent of his conviction and sentence under section 302 (b), but partially allowed the appeal to the extent of the conviction under section 7 (a) of the ATA, and his conviction and sentence on that count was set aside. ^[11]

The case made its way to the Supreme Court when Mumtaz Qadri filed an appeal, challenging the upholding of his conviction under Section 302 (b) by the Islamabad High Court, while the State sought leave to appeal against the same judgment, challenging the acquittals of the accused from the charge under section 7 (a) of the ATA.

The court framed a number of issues in deciding the appeal. It sought to discuss two questions that were of paramount importance in cases of murder. Firstly, did the accused actually commit the act in question and secondly, was there a legal or factual justification for carrying out the murder. With regard to the first question, the court pointed to the fact that Mr. Qadri had never denied shooting Mr. Taseer. He had accepted as such in his statement before the trial court. The court therefore felt that this question had already been sufficiently answered. With regard to the second question, the court decided to deal with the factual and legal justifications separately.

In its judgment, the court discussed two primary factual justifications provided by Qadri. The first was that during the course of defending Aasia Bibi, a convicted blasphemer, Mr. Taseer had called the blasphemy law a ‘black law’. Mr. Qadri had contended that the expression of this view amounted to blasphemy itself. The second part of the factual justification advanced by him was that immediately before the murder, the appellant had said to Mr. Salman Taseer that it was unbecoming of him as a Governor to have called the blasphemy law a black law, upon which Mr. Salman Taseer had responded by using obscene words to describe the law. In a criminal case, whenever an accused seeks to demonstrate his actions as justifiable under a peculiar set of circumstances, Article 121 of the Qanoon-e-Shahadat Order, 1984 comes into play.^[12] The Article places the burden of proving that the actions fall within the general exceptions provided by the PPC on the accused. Upon failure to fulfill this burden, the court presumes the absence of such circumstances. The court argued that while grave and sudden provocation could be a valid exception, the burden of proof was on the defendant to show that such provocation had indeed occurred. Going through the record, the court ruled that Mr. Qadri had failed to fulfill this burden. The news clippings and interviews that he had produced in the court made no mention of the dates and timings of when the alleged blasphemy by Mr. Taseer had occurred. Furthermore, in the alleged utterances, Mr. Salman Taseer had never, directly or indirectly, made any observation about the Holy Prophet Muhammad (peace be upon him) so as to attract the definition of blasphemy contained in section 295-C, PPC.^[13] With regard to the alleged utterances by Mr. Taseer to Mr. Qadri, when the latter confronted him about his remarks, the court ruled that no evidence of that interaction ever happening had been provided. Thus the court ruled that no factual justification existed for the actions of Mumtaz Qadri.

Moving to possible legal justifications available to the defendant, the court observed that all such justifications forwarded by the accused relied upon the belief that Mr Taseer had in fact committed blasphemy through his utterances. As the evidence on record had not proved this, the court called upon the counsel representing the accused to forward another defense. Subsequently, the counsel referred to section 79 of the PPC.^[14] By relying upon the provisions of this section, the learned counsel for the appellant maintained that even if Mr. Salman Taseer had not committed the offence of blasphemy within the meanings of section 295-C of the PPC, the appellant still mistakenly believed that Mr. Salman Taseer had committed the said offence and, therefore, the appellant had committed no offence by murdering him. The court proceeded to analyze Section 79, coming to the conclusion that the interpretation forwarded by Qadri’s counsel was ‘misconceived and unacceptable’.^[15] It argued that Qadri’s actions were a mistake of the law and not a mistake of fact.^[16] He had also not acted in good faith, as he did nothing to verify the statements he believed Salman Taseer had made and instead acted on hearsay.

Once it became clear that the court would not hold any legal justification for the actions of Mumtaz Qadri, his counsel proceeded to turn to Islam to find a justification for the actions of the accused. The counsel produced a number of verses from the Quran, the opinions of some renowned scholars and two decisions delivered by the Caliph Umar (R.A). These sources dealt with the Islamic position on blasphemy and the prescribed punishment for a blasphemer. In response to this line of argument, the court, delivered what is perhaps the most important ruling of the judgment. It first pointed to Article 203-G and Article 175 (2) of the Constitution, arguing that the interpretation of the Islamic law on blasphemy was not within the jurisdiction of the court.^[17] Not wanting to dwell on the issue, it stated that in all the relevant historical incidents during the early days of Islam, the person accused had been adjudicated guilty of blasphemy. It was not so in the present case as Salman Taseer had not been declared a blasphemer by any competent authority. At this junction, the judgment went into the discussion of the issue of whether criticizing the blasphemy law constitutes blasphemy itself. Holding unequivocally that it does not, the court stated, ‘It goes without saying that seeking improvement of a manmade law in respect of a religious matter for better or proper enforcement of such law does not ipso facto amount to criticizing the religious aspect of such law’. It also made reference to the case of Muhammad Mahboob v The State ^[18] to show that, in the past, the courts themselves had been critical of the application of the blasphemy law in Pakistan.^[19]

The last issue that the court ruled upon was whether the actions of Mumtaz Qadri constituted terrorism. He had originally been charged under the ATA but the Islamabad High Court had acquitted him of the charge. Terrorism is defined in Section 6 of the ATA. The Supreme Court bifurcated terrorism as defined under the section into two parts; the mens rea and the actus reus of the offense.

As far as the case in hand is concerned, the actions of Mumtaz Qadri involved firing at Mr. Salman Taseer and thereby causing his death and, thus, his actus reus fell within the ambit of section 6(2)(a) of the Anti-Terrorism Act, 1997. ^[20] Regarding the appellant's mens rea, the court ruled that he had himself said in his statement recorded by the trial court that the murder of Mr. Salman Taseer committed by him was ‘a lesson for all the apostates, as finally they have to meet the same fate’.^[21] That statement of the appellant clearly established that not only he wanted to punish Mr. Salman Taseer privately for the perceived or imagined blasphemy committed by him, but he also wanted to send a message to all others in the society at large who dared to follow in Mr. Salman Taseer’s footsteps. The matter of murdering Mr. Salman Taseer was, ‘surely designed to intimidate or overawe the public or a section of the public or to create a sense of fear or insecurity in the society so as to attract the requisite mens rea contemplated by section 6(1)(b) of the Anti-Terrorism Act, 1997’.^[22]

In light of these considerations, the Supreme Court upheld Mumtaz Qadri’s conviction and overturned the Islamabad High Courts decision to acquit him under Section 7 (a) of the Anti Terrorism Act.

Prior Case law

For the Supreme Court to come to the unequivocal conclusion that the murder of Salman Taseer by Mumtaz Qadri constituted an act of terrorism which could not be justified on the basis of any alleged blasphemy on part of the victim, a number of important cases need to be looked into to discern the progression of Pakistani jurisprudence to the point where it could take such a stance.

In Mohammed Mehmood v The State,^[23] the Lahore High Court discussed the history of the blasphemy law at length and analyzed the impact that Section 295-A and 295-C of the PPC had on the legal system of the country. The case concerned the conviction of Mohammed Mehmood under Section 295-C. The court pointed to the fact that the original, ‘blasphemy law’ was enacted under the colonial rule to protect minority Muslims from possible abuse of their religious sentiments by the majority Hindu community. After the creation of Pakistan, however, the laws were significantly amended even though Muslims were in the majority. Section 295-A of the PPC was added in 1980. Section 295-B was introduced two years later in 1982, while, in 1986, 295-C was enacted. ^[24] In 1991, the Federal Shariat ordered that life imprisonment should be removed from the possible punishments, thereby instituting a mandatory death penalty in case of conviction under 295-C.^[25]

The judgment made two important advances in the approach that the judiciary in Pakistan has taken with regard to the blasphemy law. Firstly, the judgment, quoting from a newspaper report, highlighted the fact that, ‘the law was being abused more blatantly by the Muslims against the Muslims to settle their scores’. ^[26] Furthermore, the ruling reproduced remarks made in a Dawn news report. These remarks stated, in part, that

the trouble is that over the years bigotry and intolerance have made such deep inroads into our society that all three parties in the blasphemy cycle, the complainant, the police and the judge think that they are doing the right thing and also earning Divine favor into the bargain when they are pressing charges under this law. This is the zeal sanctioned by the law and clothed in self righteousness.^[27]

That the High Court would include such extracts in a judgment on blasphemy by seeing them as relevant demonstrates a development in the judicial thinking of the court, which in earlier times would not be willing to make a representation that could be seen as provocative in certain circles.

The second important point in the Mohammed Mehmood judgment was the fact that the ruling, relying upon the sayings of the Holy Prophet (peace be upon him) and examples of how he lived his life, argued that blasphemy, historically, was a forgivable offense in Islam. It does this by using the authority of Imam Ibn Taymiyah who himself quotes from Abdullah bin Abbas(R.A), that an apostate may be exempted from punishment if he repents. Ibn Abbas (R.A) further narrated that the Holy Prophet had forgiven a man who used to abuse and insult him after an apology was tendered.^[28] By making the argument that blasphemy may be a pardonable offense under some circumstances, the judgment helped to point towards a more conciliatory approach to issue of blasphemy.

This evolution can be seen in, for example, the fact that the Supreme Court took suo moto notice of the violence against Christians in Badami Bagh, Lahore in 2013 after allegations that blasphemy had been committed.^[29] The court ruled that in such a situation where the police themselves had taken shelter from a violent mob and failed to protect the life and property of the inhabits of the colony, prima facie, ‘the fundamental rights of the citizens of the colony were not protected as enshrined under Articles 9 and 14 of the Constitution.’ ^[30]

With regard to the second issue of what constitutes terrorism, a number of prior cases are helpful. As discussed earlier, Mumtaz Qadri was convicted under section 7 of the ATA. The conviction was overturned by the Islamabad High Court but was reinstated in the final ruling of the Supreme Court. In Basharat Ali v Special Judge Anti Terrorism Court II Gujranwala, terrorism was described as ‘denoting the commission of a crime with the object and purpose of destabilizing the society or the government with a view to achieve objectives which are political in the extended sense of the word’.^[31] The judgment in this case delved into a detailed discussion regarding the distinction between terror and terrorism, arguing that the critical difference between the two is the design and purpose; mens rea in jurisprudence. This is the intention behind the crime, in this case to spread fear and insecurity. While every crime creates a sense of terror or fear in the victim, that is not the primarily goal of the offender. As against this, an act of terror is, by its nature, designed to create fear and insecurity in society. Ultimately, the court held that in order to qualify as terrorism an act must be designed to create a fear and insecurity and to ‘achieve a political and larger objective’. ^[32]

The next case to note is Bashir Ahmed v Muhammed Siddique.^[33] In this case, the Supreme Court held the determination as to the nature of a crime as an act of terrorism, ‘cannot be determined without examining the nature, gravity and heinousness of the alleged offense, the contents of the First Information Report (‘FIR’), its cumulative effect on the society or a group of person and the evidence which has come on record.’^[34]

Most recently, in Ahmed Jan v Nasrullah,^[35] where it was held that when it comes to discerning if a criminal act also qualifies as an act of terrorism under the ATA, the unique circumstances of the case and the motive behind the crime must be examined. The case held that a murder due to family enmity was not a terrorism offense as there was no intention to spread fear in the general public.

Analysis

There are a number of important facets of the Mumtaz Qadri judgment that may be analyzed, because the judgment is arguably the clearest pronouncement of the superior Judiciary of Pakistan on issues revolving around the blasphemy laws.

Firstly, it is interesting to note that the judgment begins by quoting from the Qur'an and the Sunnah of the Prophet (peace be upon him). It uses verses to make the point that no action should be taken against a suspected criminal without properly ascertaining the facts of the situation. The use of scripture by the court appears to be a move to give religious legitimacy to its argument; a much-needed commodity when dealing with provocative and divisive issues like blasphemy. In a subsequent section, however, the judgment clarifies that this employment of religion cannot form a legal basis in deciding the case. It points to Article 203-G of the Constitution of Pakistan that categorically ousts the jurisdiction of the court in matters of interpretation of the injunctions of Islam that fall within the exclusive domain of the Federal Shariat Court.^[36] The judgment follows this by pointing out how the Supreme Court is, ‘obligated to decide this case in accordance with the law of the land as it exists and not in accordance with what the law should be.’^[37] This expression of explicit limitation on its own jurisdiction by the Supreme Court demonstrates a continued march towards a less activist Supreme Court in Pakistan. A clear shift in approach is plainly visible as compared to the Chaudhry court, an era during which the Judiciary was willing to take a far more proactive role in changing the law.

Secondly, in making the point that abuse of the blasphemy laws is rampant in Pakistan, the judgment quotes relevant sections from an earlier case, Muhammed Mahboob v The State.^[38] In that judgment, as discussed earlier, the Lahore High Court somewhat hesitantly referred to a newspaper report to highlight the abuse of the blasphemy laws. The fact that the Supreme Court was now willing to refer to the judgment unequivocally, without attributing findings of abuse and calls for reform to third parties, demonstrates a change in the severe reluctance that existed in discussing these issues for fear of reprisals and backlash. The fact that the Supreme Court of is now willingly to openly critique the abuses of the enacted blasphemy law is an encouraging sign that the whole judicial system, particularly the lower courts might be more willing to take a critical view of the use of the law.

Thirdly, the Mumtaz Qadri ruling definitively closes the door to legally sanctioned vigilante justice. In a country like Pakistan where there have been numerous instances of people taking the law into their own hands by lynching suspected criminals, attacking alleged blasphemers and destroying their communities, the ruling, by emphatically stating that, ‘the law of the land does not permit an individual to arrogate unto himself the role of complainant, prosecutor, judge and executioner’, ^[39] helps in establishing the principle that regardless of the alleged offense, it is the responsibility of the State, not private individuals, to initiate criminal proceedings against an alleged offender.

Lastly and perhaps most importantly, the judgment, in deciding if Mumtaz Qadri was within his rights to shoot Salman Taseer for his alleged blasphemy, held that to question the application of blasphemy laws or to call for their reform in face of such rampant abuse did not constitute the commission of an offense. To further substantiate this point, the judgment draws an analogy with the Hudood Ordinances. According to the Supreme Court, even though that law too is based on divine scripture, it has faced serious criticism since its promulgation and calls have been made for reforms. These demands are fundamentally legal. The court goes a step further on this issue by explaining that, ‘in a democratic society, citizens have a right to contend, debate or maintain that a law has not been correctly framed by the state in terms of the mischief sought to be suppressed or that the law promulgated by the State ought to contain adequate safeguards against its misapplication or misuse by motivated persons.’ ^[40] The judgment then traces the history of the blasphemy law in Pakistan as originally enacted under colonial rule in the British India. It points out that Section 295-C as it currently stands restricts blasphemy to defiling the name of the Holy Prophet (peace be upon him), and not to a criticism of the law itself. Even counsel for Mumtaz Qadri was of the view that the law should be ‘improved so that it should be brought in line with the true scope of the concept of blasphemy’.^[41] By using the arguments of the perpetrator of the crime, the court successfully demonstrates the possibility of an evolution in the law, without which the law continues to be a tool for settling personal scores among the people.

Conclusion

The Mumtaz Qadri case marks an important point in the legal history of Pakistan. The court should be lauded for delivering a judgment, which as was obvious, would stir up anger in certain parts of society. By holding that the criticism of any law, even the blasphemy law, is well within the rights of every citizen and does not constitute blasphemy, the judgment, helps in opening the door to a more broad-based and open discussion regarding the issue of blasphemy. Furthermore, by accepting that the law has been used to settle personal scores, the judgment provides credence and legitimacy to calls for amendments to make abuse less likely. The judgment may mark a turning point in the unfortunate history of blasphemy laws in Pakistan and may be the catalyst for a change in the current state of affairs.

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